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A. GENERAL PRINCIPLES OF INTERPRETATION JUSTIFY THE CONCLUSION THAT THE

POWER TO REGULATE INTERSTATE COMMERCE INCLUDES POWER TO PROHIBIT IT.

1. The power of Congress over interstate commerce is the same as that enjoyed by the individual States prior to the adoption of the Federal Constitution.

Under the Articles of Confederation, each State had complete control over its commerce with the other States and could prevent the importation of the products of another State. The exercise of the power to regulate commerce most familiar to the framers of the Federal Constitution was the total or partial prohibition of traffic in particular articles. Several of the States had adopted such prohibitions. The only clause in the Constitution which took from the individual States any of their power over commerce is that which placed the power to regulate interstate commerce in the Federal Congress. The Supreme Court has decided that the power of Congress under this clause is exclusive; no residuum of power over insterstate commerce has been left to the States.

If the individual States prior to the adoption of the Federal Constitution possessed power to prohibit imports from other States, and if the entire power of the States over interstate commerce was transferred to and vested in the Federal Government, what has become of the power to prohibit transportation across State lines if it was not included in the grant to Congress of power to regulate commerce between the States? It may be argued that when the individual States surrendered this power to prohibit imports it thereupon ceased to exist in either the Federal or State Governments, but that the framers of the Constitution intended to transfer to Congress this power to prohibit transportation across State lines is demonstrated by article 1, section 9, of the Constitution, which is quoted and discussed in the following section of this brief. Further argument along these lines would seem to be unnecessary and academic. Unquestionably the States possessed the power to prohibit. It is equally certain that they gave up that power on the adoption of the Federal Constitution. It is, however, inportant that the only provision in the Constitution which vests in Con gress the power over commerce previously exercised by the States is the clause which authorizes Congress to regulate” interstate commerce. Many learned reasons may be advanced to prove that "regulate” does not mean “prohibitbut the fact is that "regulate” was selected as the word to transfer to Congress the full power previously possez zed by independent States, and that of course included wwer to prohibit.

2. That the power to regulate was intended to include the power to prohibit is indicated by other provisions of the Constitution.

Article 1, 8-ction 9, of the Federal Constitution provides: “The migration or importation of such prrsɔns as any of the States now existing shall think prop r to admit shall not be prohibited by the Congress prior to the year 1808.”. A prohibition by Congress of the migration or importation of such persöns could be bas d only on the power to regulate interstate and foreign commerce, and if the framers did not intend the pɔwer to regulate to include the power to prohibit, this express restriction on the pɔwer to prohibit migration or importation of certain persons was entirely unnecessary and superfluous. It must be assumed that the framers of the Constitution believed that there was necessity for this provision, and that they so believed indicates that they intondrd that the power granted to Congress to regulate commerce in an earlirr s`ction of the Constitution should include the power to prohibit the migration or importation of these persɔns. This claus? can not be waved aside as relating only to importation from foreign countries into this country. It is perfectly definite and relates as well to “the migration

of such persons as any of the States * shall think proper to admit.” Referring to this section, Chief Justice Marshall, in Gibbons v. Ogden (9 Wheat., 1, 216 [1824]), said:

"(This section) has always been considered as an exception from the power to regulate commerce and

so far as an exception from a power proves its existence, this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, and to those who pass involuntarily.”

3. The power of Congress over interstate commerce is as extensive as the power over foreign commerce and it is established that the power to regulate foreign commerce includes the power to prohibit.

Congress derives its power to regulate interstate commerce from the same clause of the Constitution from which is derived its power over foreign commerce. The power over interstate and foreign commerce is granted in precisely the same words and the Supreme Court has repeatedly declared that these powers are identical. In Bowman v. Chicago & Northwestern Railway Co. (125 U. S. 465, 482 (1888]), the court said:

"The power conferred upon Congress to regulate commerce among the States is indeed contained in the same clause of the Constitution which confers upon it power

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to regulate commerce with foreign nations. The grant is conceived in the same terms, and the two powers are undoubtedly of the same class and character and equally extensive."

And again, in Crutcher v. Kentucky, (141 U. S., 47, 57 [1891]) the court said:

“It has frequently been laid down by this court that the power of Congress over interstate commerce is as absolute as it is over foreign commerce.

Similar statements by the court, to the effect that the power granted to Congress over interstate commerce is as extensive as the power over foreign commerce,

may be found in Gibbons v. Ogden (9 Wheat., 1, 194, 228 [1824]); License Cases (5 Howard, 504, 578 [1847]); Brown v. Houston (114 U.S., 622, 630 [1885]); Pittsburg & Southern Coal Co. v. Bates (156 U. S., 577, 587 [1895]); Lottery Cases, (188 U.S., 321, 351 (1903]).

The regulation of foreign commerce by Congress has frequently assumed the form of prohibition. The nonimportation and embargo acts, which were upheld by the Supreme Court, are striking illustrations of the exercise of this power. In the case of Gibbons v. Ogden (9 Wheat., 1, 192 (1824]), Chief Justice Marshall, referring to the argument that embargoes are an instrument of war depending for their validity on the war-making power, said: “They are sometimes resorted to without a view to war and with a single view to

When Congress imposed that embargo which for a time engaged the attention of every man in the United States, the avowed object of the law was the protection of commerce and the avoiding of war."

commerce.

Again, in United States v. Marigold (9 Howard, 560, 566 (1850)), the court said:

“Since the passage of the embargo and nonintercourse laws, and the repeated judicial sanctions those statutes have received, it can scarcely, at this day, be open to doubt that every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded, when either measure shall be demanded by the safety or by the important interests of the entire Nation.”

In United States v. William (28 Fed., 614 (1808]), the then recent embargo act was sustained as a valid regulation of foreign commerce.

In the more recent case of Butterfield v. Stranahan (192 U. S., 470 (1904]), an act of Congress prohibiting the importation of inferior grades of tea was held constitutional.

In Oceanic Navigation Co. v. Stranahan (214 U.S., 320 [1909]), an act excluding aliens was sustained, and in The Abby Dodge (223 U.S., 166 [19121), a conservation measure excluding deep-sea sponges taken by aivers was upheld.

No more effective argument in favor of the power can be advanced than a statement of the frequent use of the power particularly in recent tariff acts. Among the recent prohibitions may be mentioned that against foreign convict-made articles; that against importation into the United States of fur-seal skins taken in violation of law; and that against the importation of the eggs of game birds.

This power of Congress to prohibit importation as a part of the power to regulate foreign commerce has become so well established that the references to it in the latter cases are hardly more than a statement recognizing the existence of the power. Thus in Weber v. Freed (Case No. 644, Dec. 13, 1915), the court, in upholding the constitutionality of the act prohibiting the introduction of prize-fight films into the United States, said that Congress possesses a complete power over foreign commerce and “its authority to prohibit the introduction of foreign articles” is “recognized and enforced by many previous decisions of this court."

Since the power to regulate foreign commerce may be exercised to the extent of absolute prohibition, and since the power over interstate commerce is equally extensive, it, too, may be exercised to the extent of prohibition. So far, therefore, as the commerce clause itself is concerned and without considering for the moment other clauses of the Constitution which affect the question, it may be stated with confidence that the power over interstate commerce may be exercised by prohibitive measures to the same extent as in the case of foreign commerce. This is not to assert that in dealing with interstate traffic Congress possesses the same unrestricted and arbitrary power of prohibition which it may exercise over foreign commerce. The reason for the difference, however, is found not in the commerce clause, but in the due process clause of the Constitution, which restrains Congress from arbitrarily depriving the individual of vested property rights. We have detached the restrictive effect of the due process clause from our present consideration because of the desirability of first obtaining a clear view of the power delegated to Congress by the commerce clause. Whether the power to regulate commerce includes power to prohibit commerce in specified articles is one question, and whether Congress nay prohibit commerce in a specified article is another. The former involves the question of Federal and State jurisdiction over commerce; the latter involves the totally different question as to the extent of the right of the individual under the fifth amendment to insist that Congress shall not exercise its otherwise admitted power over commerce in such manner as to deprive the individual of his property or liberty without due process. The

former raises the issue between Nation and State under the commerce clause and the reserved powers clause; the latter raises the issue between the Nation and the individual under the commerce clause and the fifth amendment.

B. PRECEDENT JUSTIFIES THE CONCLUSION THAT THE POWER TO REGULATE INCLUDES

THE POWER TO PROHIBIT INTERSTATE COMMERCE.

The foregoing theories of interpretation of the commerce clause and the precedents derived from its exercise over foreign commerce standing alone, compel the conclusion that the power to regulate includes the power to prohibit in interstate as well as foreign commerce; but fortunately we have additional and more specific authority to the same effect in a number of decisions of the Supreme Court in which prohibitions of transportation or shipment in interstate commerce of specified persons or things have been sustained. It is sufficient to list the prohibited persons and things and cite the cases sustaining their exclusion from interstate commerce.

1. Prohibition of transportation of lottery tickets or advertising matter relating to lotteries.

The act of Congress of 1895 (28 Stat. L., 963, ch. 191) forbade, under penalty of criminal punishment, the bringing into the United States for the purpose of disposing thereof, or the carrying from one State to another of any lottery ticket or advertisement relating to loiteries. The Supreme Court held that lottery tickets and advertising matter were subjects of commerce, that the regulation of their carriage from State to State was a regulation of interstate commerce, and that Congress had the power to prohibit their carriage in such commerce. (Lottery cases, 188 U. S., 321 (1903). 2. Obscene literature and articles designed for immoral and indecent use.

The act of February 8, 1897 (29 Stat. L., 512, ch. 172), and March 4, 1909 (37 Stat. L., sec. 249), prohibiting the carrying of such literature and articles from one State to another was held constitutional in United States v. Popper (98 Fed. Rep , 423 [1899]). This act was cited with approval in Hoke v. United States (227 U. S., 308 [1913]).

3. Adulterated or misbranded food and drugs. The act of June 30, 1906 (34 Stat. L., 768, Ch. 3915), prohibits the shipment or delivery for shipment in interstate commerce of any adulterated or misbranded food or drug under penalty of criminal punishment. This act has been interpreted and its penalties enforced by the Supreme Court in the case of Hipolite Egg Co. v. United States (220 U. S., 45°[191]]), and in United States v. Lexington Mill & Elevator ('o. (232 U. S., 399 [1914]). These cases are authority for the right of Congress to condemn when found in interstate commerce, the articles whose shipment is prohibited, and they are generally accepted as authority for the constitutionality of the prohibition. In Seven Cases v. United States (Nos. 50 and 51, Jan. 10, 1916), the Supreme Court upheld the constitutionality of an amendment to this act which provided that misbranding includes any statement regarding the curative or therapeutic value of the article or ingredients which is false and fraudulent. 4. Transportation of women from one State to another for immoral purposes.

The act of Congress of June 25, 1910 (35 Stat. L., 825, ch. 395), prohibited the transportation in interstate commerce, for immoral purposes, of women and girls. This act was held constitutional in Hoke v. United States (227 U. S., 308 [1913]).

5. Transportation in interstate commerce of a commodity in which the carrier thereof has a legal interest.

The act of Congress of June 29, 1906 (34 Stat. L., 584, ch. 3591), commonly known as the Hepburn Act, prohibited the carriage in interstate commerce of commodities in which at the time of such transportation the carrier had a legal interest direct or indirect. This prohibition was held constitutional in United States v. Delaware & Hudson Railroad Co. (213 U. S., 366, (1909?).

6. Indirect prohibition of the transportation of intoxicating liquors in interstate commerce.

In 1890 Congress passed the Wilson Act (26 Stat. L., 313, ch. 728), which provided that upon arrival within a State intoxicating liquors should become subject to the police regulations of the State and should not be exempt therefrom under the rules protecting original packages shipped in interstate commerce, even after their arrival in the State to which they were consigned. The Wilson Act was a declaration by Congress that despite the exclusive power of Congress over such original packages in their transit to the point of destination, they should become subject to the State police regulations as soon as they reached the consignee. In In re Rahrer (140 U. S., 545 [1891]), this act was held constitutional and a State law prohibiting the sale of intoxicating liquor in the original package was held to apply to a sale in the original

package of liquor brought from another State. The power of Congress thus to subject a legitimate article of commerce to laws which practically prohibited its transportation into a State, implies a power on the part of Congress directly to prohibit such transportation. And Congress has prohibited by the Webb-Kenyon Act of 1913 (37 Stat. L., 699, ch. 90) the shipment into a State of intoxicating liquor intended to be used in such State contrary to the laws thereof. The constitutionality of this latter act, like that of the pure food and drugs act, has not been questioned, but the Supreme Court by implication has sustained its constitutionality. I Adams Express Co. v. Kentucky (238 U. S., 190 (1914]) the court was compelled to interpret and apply the Webb-Kenyon Act in a case involving the power of Kentucky to exclude shipments of intoxicating liquors from that State when they were not intended to be used in violation of the State laws. The Kentucky statute was held to be a regulation of interstate commerce and unconstitutional because it did not come within the terms of the congressional act. There can be no doubt, considering the attitude of the court toward The Wilsɔn Act and in the case cited, that the Webb-Kenyon bill would be sustained as constitutional.

7. Frühibition of shipment or transportation of meats which have not been inspected.

The meat-inspection act of 1906 prohibits the shipment or transportation in interstate commerce of meat “which has not been inspected, examined, and marked 'Inspected and passed.' Violation of the provisions of this act is penalized irrespective of the knowledge on the part of the shipper or carrier.

8. Prohibition of the shipment or transportation of cattle in interstate commerce except under regulations established by the Secretary of Agriculture.

The cattle quarantine acts of 1903 and 1905 authorize the Secretary to make rules and regulations and to establish a cattle quarantine and provide a penalty for violation thereof. The enforcement of these acts is secured through the refusal of carriers to accept shipments of cattle unless accompanied by the certificate of the Department of Agriculture.

9. Prohibition of the shipment or transportation in interstate commerce of unmarked imported nursery stock or quarantined nursery stock.

The nursery stock act of 1912, prohibiting such shipment or transportation, imposes a penalty for violation, which is enforced against the shipper even in the absence of knowledge on his part of his violation.

10. Prohibition of the shipment or transportation of game in interstate commerce.

The Lacey Act (sec. 242 of the Criminal Code of the United States) prohibits the shipment or transportation in interstate commerce of (1) “foreign animals or birds the impɔrtation of which is prohibited” and (2) "dead bodies or parts thereof” of "wild animals or birds” killed or shipped in violation of the laws of the State where killed or from which shipped. Violation is punished in the case of the shipper irrespective of his knowledge.

11. Prohibition of the shipment or transportation in interstate commerce of renovated butter.

The act of 1902 prohibits shipment or transportation in interstate commerce of renovated butter unless marked in the way specified in the act. Violations are punished irrrsprctive of knowledge.

12. Prohibition of shipment in interstate commerce of specified virus, serum, etc.

The act of 1913 prohibits shipment of "worthless, contaminated, dangerous or harmful virus, srúm, etc.,” for domestic animals, or the shipping of any virus, serum, etc., unless prepared under regulations of the Secretary of Agriculture at an establishment holding a license from the Secretary of Agriculture.

13. Prohibition of importation and interstate transportation of prize-fight picture films.

The act of July 31, 1912 (37 Stats. L., 240), makes it unlawful to bring into the United States or to ship or transport in interstate commerce picture films representing prize fights designed to be us d or capable of use for public exhibition. This act was held constitutional in its application to importations in the case of Weber v. Freed (No. 644, Oct. term, 1915, Upinion Dec. 13, 1915).

In view of these decisions it is unquestionable that, so far as the commerce clause is concerned, a regulation of interstate commerce may take the form of an absɔlute prohibition of shipment or transportation in such commerce. As the Supreme Court has said:

“It can scarcely, at this day, be open to doubt that every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded when either measure shall be demanded by the safety or by the important interests of the entire nation." (U. S. v. Marigold, supra.)

III. THE POWER OF CONGRESS OVER INTERSTATE COMMERCE MAY BE EXERCISED

IN THE INTEREST OF THE PUBLIC HEALTH, MORALS, SAFETY, AND WELFARE AS WELL AS IN THE INTEREST OF THAT COMMERCE AND ITS INSTRUMENTALITIES.

It is frequently stated in the opinions of the Supreme Court that Congress possesses a poli e power under the commerce clause. This means in effect that Congress may exerci e its express powers-of which the commerce power is one-for the purpose of protecting and furthering the general welfare of the people. The use of its powers for such general purposes is analogous to the use by the states of their so-called police . power. This power in the States is simply the inherent power of government to legislate for the common good, notwithstanding guarant'es of individual rights and lil erties contained in our constitutions. In the case of Congress, which possesses no inherent power, but is limited to powers expressly granted by the Federal Constitution, this so-called police power is merely a right to make use of its express powers to proviłe for the public welfare. In toth cases the purpose of exercising the power is the same and it is, therefore, convenient, as it has tecome usual-to refer to the exercise of the commerce and other express powers in the interest of the general welfare as the police power of Congress.] his , hrase will not prove confusing if we remember that by it we mean simply that use of the commerce power which aims not at Ienefiting or advancing, commerce itself or its instrumentalities, but at advancing the general welfare through regulation of commerce.

Thus it has leen held that under the power to estal lish postoffices and post roads Congress may prohil it the transportation through the mails of all letters or circulars concerning lotteries. (Ex parté Jackson (1877) 96 U. S., 727; in re Lapier (1892] 143 U.S., 110.)

Similarly, the use of the mails may be denied to any person or company engaged in conducting any lottery or device for obtaining money or property by means of false pretenses. (Public Clearing House v. Coyne (1904] 194 U. s., 497.) · From the earliest days of our Nation it has been regarded as within the power of Congress in regulating foreign commerce to enact laws, not for the exclusive benefit or advancement of that commerce, but for the protection of the interests of the country.

The embargo and nonintercourse laws are examples of such legi lation. Thus, in United States v. Marigold (1850), (9 Howard, 560, 566), the court said:

"Since the passage of the embargo and 'nonintercourse laws, and the repeated judicial sanctions those statutes have received, it can scarcely, at this day, be open to doubt that every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded, when either measure shall be demanded by the safety or by the important interests of the entire nation."

In United States v. Williams (1808), (28 Fed. Cases, 614, 621) Judge Davis, in sustaining the constitutionality of the then recent embargo act, said directly:

"Further, the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest.”.

In an essay on the commercial power of Congress, Mr. David Walter Brown, of the New York bar, thus summarizes the early exercise of the commerce power:

"The policy of restriction included measures of two kinds: (1) The prohibition of the importation of foreign commodities and of the entry of foreign vessels into our ports, and (2) embargoes upon commerce. They illustrate, upon a grand scale and in a drastic manner, the application of the commercial power of Congress to the attainment of great national ends through restrictions placed upon various branches of trade, and extending even to total prohibition; and in so far as the precedents furnished by them are authoritative, they indicate the unsoundness of the view that the power of Congress to regulate commerce is restricted to the passing of measures to advance it, but stops short of the power to prohibit it."

That this conclusion is correct is shown by the following quotation from the case of Buttfield v. Stranahan (1904) (192 U. S., 470), where the Supreme Court, in holding constitutional an act of Congress which prohibited the importation of inferior teas, said (p. 493):

"Congress has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated by statutory provisions which have been in force for more than 50 years, regulating the degree of strength of drugs, medicines, and chemicals entitled to admission into the United States and excluding such as did not equal the standards adopted.”

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